Egypt’s Imperfect Constitution

Egyptian President Morsi is pressing for a quick vote on a new constitution which has drawn criticism from both secularists and Islamists. But the imperfect plan has the benefit of establishing some governing rules for the tumultuous country and can be changed later, writes ex-CIA analyst Paul R. Pillar.

By Paul R. Pillar

The stage in Egypt seems set for yet another surge of political tension and high drama over the coming fortnight, as President Mohamed Morsi has designated Dec. 15 as the date for a referendum on the just-written constitution.

The outcome of the referendum will no doubt be widely seen as a test of strength between Morsi’s Muslim Brotherhood and its secular opponents, whether it ought to be seen that way or not.

Egyptian President Mohamed Morsi meeting with U.S. Secretary of State Hillary Clinton in July 2012. (U.S. government photo)

The document will be regarded as a Brotherhood product, given a boycott of the constitution-writing assembly by liberal secularists and Christians, and given also Morsi’s claiming of special powers to prevent the judiciary from negating the work of the Brotherhood-dominated constituent assembly.

The rush with which the drafting of the constitution was completed and with which it will now be put to a vote conveys to many Egyptians an impression of railroading something through. Morsi’s recent Mubarak-like pronouncements about threats from “conspiracies” have added to the forbidding atmosphere.

The hastily written draft constitution has something for everyone to dislike, but democracy in Egypt will not live or die based on the result of the referendum. Nor will the balance of power between Islamists and secularists depend on it. Morsi’s opponents might even be well advised to drop resistance to letting the new constitution come into effect.

Doing so would in a sense be calling his bluff. The powers he claimed for himself at the expense of the judiciary would expire, and the president under the constitution will be a less powerful president than Morsi claims to be now. And as Morsi himself noted, the constitution can be amended.

Secularists might be comforted by noting that the Salafists are unhappy enough with the constitution that they have announced they will boycott the referendum. The Salafists complain that the document vests sovereignty in the people rather than in God.

Egypt needs some kind of constitutional structure if subsequent debates about the direction of the country are to be conducted within an orderly framework rather than being part of a game where all the rules are made up as the game proceeds. Any representative political system needs to start with someone making up rules and acting without having previously recognized authority, but it cannot stay that way indefinitely.

Of course Morsi cannot point to any widely accepted authority to claim the power to issue the decree he did the other day, but the other actors in the Egyptian political game don’t have much more of a legal basis for doing what they are doing either.

Any U.S. officials or other Americans who offer advice to the Egyptians during this politically interesting time might allude to the experience of the United States in establishing a constitutional order during its early days. The writers of the U.S. Constitution certainly exceeded their authority when instead of amending the Articles of Confederation they created an entirely new constitution and specified that it would come into effect with less than unanimous approval by the states.

The participation in writing the constitution was incomplete. Rhode Island did not attend, the New Hampshire delegates arrived late, most of the New York delegates left early, and several who stayed for the whole meeting refused to sign the product. Significant opposition to the document persisted, and demands for amending it were strong enough for the first ten amendments to be a task of the very first Congress.

The lesson is that the success of, and respect for, a constitution is a function of the political habits and attitudes toward it that develop over time. It does not depend on the legal basis on which it was initially written, and it does not depend on who was in power or who favored the constitution when it was first written.

Paul R. Pillar, in his 28 years at the Central Intelligence Agency, rose to be one of the agency’s top analysts. He is now a visiting professor at Georgetown University for security studies. (This article first appeared as a blog post  at The National Interest’s Web site. Reprinted with author’s permission.)

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5 comments on “Egypt’s Imperfect Constitution

  1. Rehmat on said:

    It’s a clash between so-called “Islamists”, pro-Mubarak “secularists” and State Department’s inspired youth groups. Since the Islamist control more 73% of the parliament seats – the secularists are affraid that Morsi with his links to Muslim Brotherhood could impose Islamic Shari’ah.

    However, Morsi is as much affraid of people’s will (Shariah) as are the secularists and Egyptian military elites. Morsi has proved himself to be a western proxy by controlling Hamas and Islamic Jihad resistance groups fighting Israel.

    Shimon Peres and former British prime minister Tony Blair had praised Morsi for his efforts to play a serious role in convincing Hamas leaders to agree to cease-fire.

    Both Secretary of State Hillary Clinton and President Obama heaped praise on the Egyptian president. Obama called his Egyptian counterpart to thank him for his efforts in the negotiations, and Clinton expressed her gratitude personally in the press conference announcing the deal.

    http://rehmat1.com/2012/11/24/israel-egyptian-morsi-is-a-brother/

  2. charles sereno on said:

    On November 29, I made the following comment on another site:
    “In previous comments, I may have mistakenly given the impression that I’m happy with Morsi. I’m not. Nor am I happy with the opportunism of Amr Moussa or ElBaradei or the departure of dissidents from the Constituent Assembly or the decision of the opposition to take a “final stand” at this moment. Consider just 2 possible scenarios: 1) Morsi is brought down. Who wins? Secularists? The Judges? The Military-Industrial-Intelligence Complex? I say the secularists would end up bad losers; 2) Morsi survives until a Constitutional Referendum in December. No doubt the constitution will be too Islamist, too open to authoritarian abuse. Can that be compared to the horrors of Mubarak? I don’t think so, even though many will say Mubarak could’ve managed with the Declaration of Human Rights. What then can be done? Fill up the squares, vote no, vote like you did before, but win this time. Egypt had a milestone, historic vote and the Brotherhood won (barely). Why throw out the Baby (democracy) with the Bath.
    (I still think the proximate agents, the judges, well too many of them, are like “encrusted pus.”)”
    I’m gratified to see Mr. Pillar take a similar line, although much better argued and in greater depth. Almost all of the “left” press has trotted along behind the MSM on this one.

  3. Peter Loeb on said:

    It is commonly (and purposefully) forgotten that one of the primary foci of
    debate in forming the Consitution for the US was the power of the government
    over the states over “the people”. Federalists (such as Hamilton to take only
    a single example) were afraid of the power of groups and lead militia to
    put down rebellions against government powers the “Whiskey Rebellion”) with
    exaggerated pride. To boot the rules for participation in governing were
    very restrictive. Not only were Native Americans, African Americans excluded
    but most states limited participation based on property (such as in the
    Commonwealth of Virginia). The Department of State was of minor significance
    employing but 3 persons total. Treasury, however, employed over 300 with
    duties at customs houses etc. We often forget to translate the world we now
    know back into the world of the 18th century.

    We should have suspected nothing less than a basic antipathy to the west
    originating in opposition to Britain which is in all of the history of the
    Society of Muslim Brothers from its foundation.

    Any government of a nation emerging from US/Washington client control will
    never be able to tolerate a Judiciary which merely declares its elected
    bodies illegal. It is also unclear what role foreign intelligence services
    (CIA/Israeli etc.) are playing in the coalitions of intellectual groups
    and well-spread misinformation of anti-Morsi demonstrations. Most probably
    we shall not “know” for many years.The pattern has been duplicated in many
    nations, not only in the Middle East.

    Morsi is powerful and must be at this time. Those of us in the West must
    give him him the chance to succeed with our support. We must re-adjust so
    that we can relate on an equal basis to a government run by Islamist parties.
    Historically, we in the West have overthrown them, undermined them etc.

    If nothing else, the Society of Muslim Brothers has demonstrated that it will
    not go away.

  4. Isn’t it wonderful to watch religious theocracy in action.

  5. Frances in California on said:

    Is no one put in mind of Argentina in late 2001? While we were busy imposing the P-act on our citizens, Argentinians rejected FOUR GOVERNMENTS IN A ROW! Egypt will have to get tough three more times to catch up.